Northcote v Captain George Henry Douglas and Another
| Jurisdiction | UK Non-devolved |
| Judgment Date | 01 August 1855 |
| Date | 01 August 1855 |
| Court | Privy Council |
English Reports Citation: 14 E.R. 403
ON APPEAL FROM THE HIGH COURT OF ADMIRALTY OF ENGLAND.
See Schacht v. Otter, The Ostsee, 1855, 9 Moo. P.C. 150, and note thereto. S.C. 8 St. Tr. (N.S.) 350; and separate report of the proceedings before the High Court of Admiralty by Deane.
ORTHCOTE V. DOUGLAS-FRANCISKA (the) [1855] X MOORE, 37 [37] ON APPEAL FROM THE HIGH COURT OF ADMIRALTY OF ENGLAND. CHARLES NORTHCOTE,-Appellant; The Honourable CAPTAIN GEORGE HENRY DOUGLAS, and FRANCIS HART DYKE, Her Majesty's Procurator-General,-Respondents * [July 26, 27, 30, and 31, and August 1, 1855]. the " feanciska." (a) Where doubts exist with respect to matter which does not appear upon evidence furnished by the ship itself, namely, the papers on board, or the examination of the master and crew, as the existence or non-existence, the sufficiency or insufficiency, of a blockade, a Prize Court will allow further proof, and such further proof is not limited to the claimant, but may be granted to the captor also [10 Moo. P.C. 43]. Whatever may be the demerits of a. ship, she cannot be condemned for a breach of blockade, unless, at the time when she committed the alleged offence, the port for which she was sailing was legally in a state of blockade, and was known to be so, by the master or owner [10 Moo. P.C. 44]. The Admiral of the Fleet must be presumed to have carried with him from England, sufficient authority to blockade such of the enemy's ports as he might deem advisable [10 Moo. P.C. 46]. Principles which regulate the right of a belligerent to exclude neutrals from a blockaded port explained. Relaxation of blockade in favour of belligerents, to the exclusion of neutrals, is illegal [10 Moo. P.C. 48]. Setnble.-It would not be valid if the same indulgence was extended to neutrals [10 Moo. P.C. 52]. Notice of a blockade must not be more extensive than the blockade itself [10 Moo. P.C. 59]. The existence and extent of a blockade may be so generally known that knowledge of it in an individual may be presumed without distinct proof of personal knowledge, and such knowledge may supply the place of a direct communication from a blockading squadron, yet the fact, with notice of whL-h an individual is so to be fixed, must be one which admits of no reasonable doubt [10 Moo. P.C. 58]. On the 15th of April, 1854, the Commander of the Baltic fleet blockaded, de facto, the coast of Courland but his notice to the British Ministers, including the British Minister at Copenhagen, was of that character, that the impression was, that all the Russian ports in the Baltic were blockaded. The English Government also on that date issued an Order in Council, giving permission up to the 15th of May, for Russian vessels to discharge their cargoes from Russian ports in the Baltic and White Sea to their port of destination, even though those ports were in a state of blockade. A similar permission was granted by the French Government. And the Russian government by a Ukase allowed the same indulgence to English and French ships. On the 14th of May, 1854, a neutral vessel, under Danish colours, sailed from, Copenhagen for Riga, and was captured off Riga by an English ship of war on the 22nd of that month, for a breach of the blockade of that port. * Present: The Lord President of the Council (The Earl Granville), the Right Hon. T. Pemberton Leigh, the Right Hon. Sir Edward Ryan, the Right Hon. Sir John Patteson, the Right Hon. Sir John Dodson, and the Right Hon. Sir W'illiam H. Maule. (a-) This was one of a class of cases, consisting of The Johanna, Maria, [10 Moo. P.C. 70], Union [10 Moo. P.C. 73], Annechina Jantina, Steen Bitte, Vrouw ALida, Jeanne Maria, and Nornen, taken as prizes for a breach of the blockade of the Coast of Courland. The Franciska was selected to try the question of ingress, and The Johanna Maria of egress, of the port of Riga. The cases of The Franciska and The Johanna Maria were argued together. 403 X MOORE, 38 NORTHCOTE V. DOUGLAS-FRANCISKA (THE) [1855] Held:-First, that the vessel was improperly seized, as there was no legal blockade at the time of the seizure [10 Moo. P.O. 54]. Second, that as the Order in Council must be taken to ha.ve extended to British and French ships, and as it relaxed the blockade in, favour of the belligerents to the exclusion of neutrals, the blockade was illegal [10 Moo. P.C. 68]. Third, that assuming the blockade to be legal, yet the master of the ship must be fixed with personal knowledge of all that was publicly known at Copenhagen on the 14th of May, and that as the general notoriety, so far as it existed at that time and place, was, that all the Russian ports in the Baltic were blockaded, which was not the fact, the notice, therefore, of the blockade being more extensive than the blockade itself, it was of no effect against a, neutral [10 Moo. P.C. 66]. In such circumstances the sentence of condemnation was reversed, and simple restitution decreed, but without costs [10 Moo. P.C. 69]. The Franciska, a neutral ship, under Danish colours, was captured on the 22nd of May, 1854, off Lsyer [Lyser] Ort, at the entrance of the Gulf of Riga, for a breach of the blockade of that port. [38] This ship sailed in March, 1854, from Tarragona, in Spain, with a cargo of wine and salt, the property of subjects of Her Majesty the Queen of Spain, bound for Elsinore for orders, and thence for Lubeck, or some other safe port in the Baltic, not further north than [39] Stockholm or Revel. On, the 13th of May, she left Elsinore, and passed the Sound, where she cleared for the Baltic generally, without naming any port, and was captured on the 22nd of the same month, off the entrance of the Gulf of Riga, by Her Majesty's ship Cruiser, under the command of the Respondent, Captain Douglas, for a breach of the blockade of Riga, and sent to England for adjudication. A claim was entered by the Appellant, a ship-broker, in London, on behalf of Jorgen Peter Arboe, of Copenhagen, the sole owner, for restitution of the ship and freight. It was alleged by him that the Master had orders to proceed to Riga, if it was not in a state of blockade; that to ascertain whether it was so or not, he made inquiries at Copenhagen, and also of Her Majesty's ship Rosamond, but without effect, and that upon descrying The Cruiser, The Franciska sailed towards her, with a view of making the same inquiry, when she was captured. The case was heard on this claim on the 6th of October, 1854, when the learned Judge of the High Court of Admiralty (The Right Hon. Dr. Lushington) admitted the claim, but allowed both the captor and the claimant to bring in further proof, which he directed to be confined to the fact of the blockade only. Further proof was brought in, and evidence entered into at great length by both parties, the material parts of which are mentioned and referred to in the judgment of their Lordships. On the 27th of January, 1855, the Judge of the Admiralty Court delivered judgment (see judgment reported, nom. The Franciska and The Johanna, 1 Spink's Prize Cases, p. Ill, where the Orders in Council, etc., are set out), condemning the ship and freight for a breach of blockade ; on the [40] grounds, first, that the blockade was notorious at Elsinore on the 14th of May, the day The Franciska sailed; and secondly, that the Master had deposed falsely, as in the opinion of the Court he was proceeding to violate the blockade with a full knowledge of the same, and that, under such circumstances, the owner could derive no benefit from the Treaty of Great Britain with Denmark, made in the year 1670. From this sentence of condemnation the present appeal was brought by the claimant. The arguments at the hearing of the appeal were chiefly upon these two points :- First, whether at the hearing of the claim, further proof as to the time at which the port of Riga was put in a state of blockade, ought to have been allowed to the captor. The cases cited upon, this question were, The Henrick and Maria (1 Rob. 148), The Haabet (6 Rob. 54), The Apollo (5 Rob. 286). Secondly, whether upon the further proof there was sufficient evidence that tin Port of Riga, if at all in a state of blockade at the time of the capture of The Franciska, was in a state of blockade, and so known to be by those in charge of the ship, and if the conduct imputed to them constituted such a breach of blockade which 404 NORTHCOTE V. DOUGLAS-FRANCISKA (THE) [1855] X MOORE, 41 made the ship liable to condemnation. Upon this point the evidence in the cause was referred to, and the following cases and authorities were cited: The Conner (1 Edw. 249, 251), The Adriana (1 Rob. 313), The Vrouw [41] Judith (1 Rob. 150-4), The Columbia (1 Rob. 154-6), The Henrick and Maria (1 Rob. 146), The Betsey (1 Rob. 93), The Christina Margaretfia (6 Rob. 62-4), The Frederick Molke (1 Rob. 86-8), The Apollo (5 Rob. 286), The Tutela (6 Rob. 177), The Juffrow Maria Schroeder (3 Rob. 147), The Jonge Fetronella (2 Rob. 131), The Neptunus (2 Rob. 110), The Bolla (6 Rob. 364), The Charlotte (1 Edw. 262), The Hoffnung (6 Rob. 112), The Triheten (6 Rob. 65-7), The Adelaide (3 Rob. 281), The Flad Oyen (1 Rob. 135), The Welvaart Van Pillow (2 Rob. 128), The Hurtige Hane (3 Rob. 324-6), The Nancy (1 Acton, 64), Naylor v. Taylor (1 Moo. and Mai. 207), The Fox (1 Edw. 311), 1 Kent's ' Comms." p. 147; 1 Kent's "Law of Nations," p. 113; 2 Wheaton's " Elem. of Inter. Law," 238 (3rd Edit.). Traite de Prize Maritime, p. 378. Annual Reg. 1793; State Papers, p. 174. The appeal was argued by Dr. Addams and Dr. TViss, for the Appellant; and The Queen's Advocate (Sir John Harding), and Dr. Jenner, for the Respondents. The case, with that of the Johanna Maria (post [10 Moo. P.O.], p. 70), involving a similar question of a breach of the block-[42]-ade of the port of Riga, stood over for...
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